Electronic Data Discovery: It's All About Access
May 26, 2005
In last month's newsletter, author Trey Wilkins covered the impact of non-native file restoration on the field of e-discovery, how the method works, and how to eliminate data-retrieval barriers. This month, a look at how non-native restoration has been used with great success in a variety of situations by numerous organizations.
Commercial Leases As an Asset of the Landlord and Tenant
May 26, 2005
Tenants and landlords should view the lease as an asset of their business. A lease cannot be entered taking into account only those conditions existing as of the date of execution. The terms of the lease will bind the parties for a considerable period, and it is important to draft the lease carefully up front in order to accommodate current and future circumstances. This article addresses the lease as an asset from the tenant's perspective, then from the landlord's perspective, and finally suggests how to approach negotiating potentially conflicting ideas about how to preserve this "joint" asset.
Does Your Lease Have an Operating Covenant?
May 26, 2005
A retail lease should include a covenant requiring a tenant to operate in the premises. The covenant needs to state clearly and unequivocally that a tenant will be required to operate in the premises for the term of the lease. The active and open operation of tenancies is the essence of retail and what ultimately makes for a successful shopping center. A clear operating covenant, or lack thereof, also facilitates the party's exit strategy from the lease, something which is often more important than the actual operation of the business in the premises.
Tenant's Estoppel Letter Does Not Trump the Lease
May 26, 2005
An "estoppel certificate" is a written statement by a party having an interest in property that defines and describes that interest so that other parties contemplating taking an interest in the same property will be informed about the nature and extent of that interest. Typically, the party signing the certificate is not a party to the transaction by which the third party is acquiring its interest. But the certificate is worded in such a way so that the party signing it is made aware of the reliance of the third party, and thus the signing party would be "estopped" from asserting matters different from those appearing in the certificate as against the third party upon completion of the transaction.
Enhancing Tenant Flexibility in In-Line Retail Leases
May 26, 2005
While it would not be possible to identify a "typical" in-line retailer (their perspectives vary as much as their products and their business plans), there are issues that recur in negotiation of leases for them. As attorneys negotiating on behalf of in-line retailers, it is important to consider the potential implications of the lease over its entire term and to plan for changes in clients' business plans by making the leases more flexible. This article examines selected practical issues in flexibility and makes recommendations for negotiating stronger leases from the retailers' perspective.
Drug & Device News
May 26, 2005
The latest pharmaceutical and medical device news of importance to you and your practice.
Third-Party Expert Witness Liability
May 26, 2005
The opinions offered at trial by expert witnesses are running an increasingly greater gamut of scrutiny. First, they are subject to the judicial scientific reliability tests of Daubert v. Merrell Dow Pharmaceutical Inc., 507 U.S. 579 (1993). Once that hurdle is cleared and the opinion given, the experts can be sued by the party who hired them, both in tort and contract, if the opinion did not live up to the party's expectations.
Nursing Home Litigation and Residents' Rights Statutes
May 26, 2005
In the recent past, nursing home residents had difficulty in recovering money damages against those facilities. In 1989, Congress enacted its Omnibus Budget Reconciliation Act of 1987, which was a major attempt at reform in the federal regulation of nursing homes. This initiative was intended to dramatically improve the health and safety of nursing home residents through extensive regulations, including the "Residents Bill of Rights," new care standards and new enforcement mechanisms. See 42 U.S.C. '' 1395, 1396 (2000).
Verdicts
May 26, 2005
Recent rulings you need to know.
